The insured was covered under his homeowner's policy when two visitors to an uninsured location were killed by carbon monoxide poisoning. Green Mountain Ins. Co., Inc. v. Wakelin, 140 N.E. 3d 418 (Mass. 2020).
Wakelin owned a cabin without electricity in a remote location. He purchased a gasoline-powered generator. He wanted the generator to be portable and paid extra for wheels and a handle for the generator. He brought the generator to his cabin to use there to provide power for his power tools when working on the property. The generator was not hard wired into the cabin. The generator was used and stored outside.
In July 2015, two of Wakelin's children and two of their friends went to visit the cabin. The four decided to bring the generator into the cabin so they could run an extension cord from the generator to a small refrigerator. They failed to open any windows or doors when they went to sleep, and were found dead inside the cabin.
The estates of the two friends who died sued Wakelin. Wakelin's homeowners insurer sued for a declaratory judgment that Wakelin was not covered. The policy excluded injury or property damage arising out of a premises owned by an insured that was not an insured location under the policy. The parties filed cross motions for summary judgment. The superior court denied the insurer's motion and entered judgment in favor of Wakelin. The insurer appealed
The issue on appeal was whether the bodily injury arose from the uninsured premises or from tortious personal conduct. Case law demonstrated a distinction between cases of tortious conduct that occurred on an uninsured premises and personal liability that arose out of a condition on the premises. Although it was a close question, the court concluded that the generator did not constitute a condition of the uninsured premises, and the accident caused by the generator could not trigger the uninsured premises exclusion.
The generator was portable, and Wakelin spent extra money on the generator so that it would be portable. It was also not hard wired into the cabin's rough electrical system to make it a part of the cabin. Nor was it regularly used to provide electricity in the cabin. The generator was brought to the cabin to charge power tools used to complete the cabin's construction, and was not continuously run to power everyday appliances inside the cabin.
It was Wakelin's failure to instruct his children on how to properly use the generator rather than any condition or defect on the property that was the basis for his potential liability here. Therefore, the judgment of the superior court was affirmed.
